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December 9, 2016

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Responding to Subpoenas

You've received a document that might be a subpoena. Your immediate
reaction may be shock and a desire to immediately obey its request. As
with anything legal, it's best not to act on impulse but to carefully
consider the options before you. While you will likely need to comply,
there are times when a court will agree to modify the subpoena's
request or even to terminate it entirely. This guide cannot give you
legal advice about your situation and you should contact a lawyer for
specific legal advice. However, this section should be able to answer
the preliminary questions you may have about how best to respond.

1. What is a subpoena?

A subpoena is a legal order commanding the person or
organization named in the subpoena to give sworn testimony at a
specified time and place about a matter concerned in an investigation
or a legal proceeding, such as a trial. A subpoena duces tecum
substitutes the requirement of your appearance to testify with a
requirement that you supply specific physical material in your
possession. A deposition subpoena means that your sworn
testimony will be taken during a phase of the trial process known as
discovery, and will likely occur at a lawyer's office.

Subpoenas may be issued by the following people involved in the legal case associated with the subpoena:

the judge presiding over the legal proceedings

the clerk of the court where the lawsuit has been filed

a private lawyer representing one of the parties in the lawsuit

a government lawyer such as the Attorney General or District Attorney

(Note that the Attorney General and District Attorney can issue
a subpoena during an investigation, before initiating a legal case).

Given that a subpoena is an order to produce yourself and/or
tangible items in a very specific legal setting, it is imperative that
you take it seriously. Failure to comply with a subpoena can have
serious consequences. However, you do have certain options in how best
to respond.

2. Did you receive a subpoena?

You'll first want to determine precisely what you've received.
In some instances, law enforcement authorities will use a search
warrant, rather than a subpoena duces tecum, to access material in your
possession. If you have been served with a search warrant, you cannot
interfere with the search. You should call a lawyer immediately, note
the scope of the search, watch and document where the authorities
performed their search, and keep a record of any items seized.

Subpoenas come in several flavors, and you may need someone
trained in the law to help you determine what type of legal document
you've received. However, a subpoena contains certain distinguishing
characteristics. Look carefully at the document for:

the full name of a court in the document's title, or letterhead

the word "Subpoena" in bold in the top third of the document

the words "you are commanded to report," or a similar variation

your name

a specific date, time and location for you to appear or for you to provide the requested materials

Subpoenas are not necessarily filed with the court, so if you
have doubts about the document you've received, ask a lawyer or call
the person who signed the document and ask if they have in fact sent a
subpoena. (An address and or telephone number should follow the
signature.) If none of the above characteristics match your document,
refer to our sections on Responding to Correspondence Threatening Legal Action, and Responding to Lawsuits for help figuring out what you've received.

3. Accepting a Subpoena vs. Complying with a Subpoena

Once you've determined that you have received a subpoena, you
may feel that you want to contest the subpoena because you believe that
it is invalid or unreasonable. You can still do so despite having
received the subpoena (which in most cases arrived by registered mail,
or by a person delivering it to you and requesting your signature).
Acceptance of the subpoena does not constitute your assent to comply
with it. However, if you object to the terms of the subpoena, then you
must inform the court about your decision to challenge it.

4. Inconvenient Date & Cost of Travel

As long as you are not one of the parties in the case and you have to travel an appreciable distance, your
transportation costs should be covered and you should be given an
attendance fee. The costs and fees are set according to the rules of
the court named in the subpoena. Generally, in a civil case you should
receive the cash or check before you have to appear. After you testify
in a criminal case, you should receive an attendance fee and travel
reimbursement.

If appearing at the time and place specified by the subpoena is
of great inconvenience, call the person who issued the subpoena, and he
may be able to reschedule your appearance to a more convenient date.
However, keep in mind that postponement may not be an option because a
court date has been set for the trial and cannot be moved. If so, and
if you would suffer extreme hardship from having to appear, consult a
lawyer who may be able to help.

5. Filing an Objection to a Subpoena

The subpoena will require that you either appear, or produce
documents or other material, at a specific time and location. If you
want to inform the court of your objections you will need to file a Motion to Quash.
Typically, a Motion to Quash contains a request to the court asking to
modify or terminate the subpoena based on certain objections, and a
memorandum explaining how the law supports the objections.

You should not wait until the date specified to make your objection known to the court. There are many valid reasons to object, the most common being:

Improper service

The law requires that you receive (were "served") with the subpoena in a specified way. Requirements for service vary according to jurisdiction,
and the subject is too complicated to address in this guide. You may
want to consult with an attorney or perform your own legal research to
understand whether service was proper. However, this is usually not a
strong objection because in all likelihood you will merely be served
once again.

Scope of Request

If you believe the subpoena you've received requests
information or material that would be difficult to gather, you may be
able to challenge it. Should the court agree with your objections, it
may nullify the subpoena. More likely, the court will limit the scope
of the subpoena, set a more reasonable deadline for you to deliver the
materials, and, if a voluminous amount of documents have been
requested, the court may also require the other party to compensate you
for making the necessary copies of each document. (Note: you should not
have to create anything new for a subpoena request; the request should
only be for existing material within your possession.)

It is important to note two things here: the court does
not usually monitor who and what is subpoenaed, and under rules of
trial procedure, a party to a lawsuit is permitted to send a subpoena
to anyone he thinks might have material useful for his case.
Additionally the material doesn't even have to relate to the subject of
the lawsuit. A party is entitled to request materials it thinks might
have the potential to lead to relevant information concerning the
subject matter of the case. Thus, unsurprisingly, many subpoenas are
drafted to be broad in scope, and in some cases, to have a short
deadline.

Confidential Material

If the subpoena requires that you turn over confidential
documents, or testify about confidential matters, like the identity of
an anonymous source, do not immediately comply with the request.
The law recognizes the importance of protecting certain communications
and grants them a privileged status for purposes of a lawsuit. For
example:

certain states have enacted "shield" laws protecting
journalists and others from being compelled to testify about
information collected during the newsgathering process, including the
disclosure of anonymous sources. Refer to our section on State Shield Laws to see whether your state has this law.

both state and federal law prevents certain professionals,
like doctors and lawyers, from being forced to testify or submit
documents about their patients or clients.

both state and federal law grant close relatives immunity from testifying in certain situations.

Because these protections vary according to each jurisdiction you will need to consult a lawyer, or perform your own legal research, to see whether any apply to your situation.

Self-incrimination

The Fifth Amendment of the U.S. Constitution protects an
individual from being forced to testify against himself when such
testimony could result in criminal liability.

In some cases, law enforcement authorities use a
subpoena to a build a case against the subpoena recipient before
pressing charges. If you think that you may be the focus of a criminal
investigation, or worry about incriminating yourself when you testify,
do not comply with the subpoena without first consulting a lawyer.

6. Hiring a Lawyer

If you haven't already made a decision at this point, you should
decide whether you want to hire a lawyer. If the request is
straightforward and you're comfortable with supplying the requested
information, you may not need a lawyer's services. However, you will
almost always be better off having a lawyer protecting your interests,
even if you think you have nothing to hide. You may mischaracterize a
situation and make yourself vulnerable to a lawsuit or criminal
charges, and if so, will find it hard to rebut the testimony given
under oath. Refer to our section on Finding Legal Help for more help.

Before contacting a lawyer, write down everything you know about
the situation, including: when and how you received the subpoena, the
nature of the actions that triggered the subpoena, and any relevant
interactions you’ve had with either party of the lawsuit. The act of
writing the summary allows you to:

record events you may later forget

evaluate your position and figure out your next steps

focus your conversation with a lawyer (should you wish to consult with one)

launch your own legal research

potentially determine the subpoena's validity

7. Adding your subpoena to the CMLP Legal Threats Database

This is an important action because creating an entry in the Legal Threats Database
will help others who receive similar subpoenas know that they are not
alone, and assist them in weighing their options regarding how to
respond. You will also help the CMLP track who is sending legal threats
and make it possible for our lawyers to help others in a similar
position.

We are looking for contributing authors with expertise in media law, intellectual property, First Amendment, and other related fields to join us as guest bloggers. If you are interested, please contact us for more details.

Disclaimer

Information in this guide is based on general principles of law and is intended for information purposes only; we make no claim as to the comprehensiveness or accuracy of the information. It is not offered for the purpose of providing individualized legal advice. Use of this guide does not create an attorney-client or any other relationship between the user and the Digital Media Law Project or the Berkman Center for Internet & Society.

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